Find a Lawyer

Criminal Appeal No. 694 of 1953, decided on 14th January, 1960.

S. 59 (3)‑Rules of Business, r. 8‑Matter of "minor importance"‑Question for deci sion of Minister‑in‑charge and not for Courts‑Appeal from acquittal filed on order of Home Secretary‑Held validly filed in absence of objection from Minister‑in‑charge‑ Criminal Procedure Code (V of 1898), S. 417.

The question whether a matter is of minor importance within the meaning of rule 8, Rule of Business, is not one to be decided by the Court. It is a matter for decision of the Minister‑in‑charge. If the Minister‑in‑charge does not object to a particular matter being dealt with by the Home Secretary because he regards it of minor importance, the Courts cannot hold that as a matter of fact the matter was not of minor importance.

Appeal from acquittal, in a case under section 5 (2), Prevention of Corruption Act (II of 1947), was filed in the High Court on the order of the Home Secretary. It was contended by the accused‑respondent that the appeal could not be said to have been filed by Government:

Held, that whether there was a practice or not that such appeals were filed on the orders of the Home Secretary, it was for the Minister to object to the filing of the appeal on the orders of the Home Secretary and it was not a matter which could be made a ground of objection to the appeal.

Conduct of accused at time of raid --Accused's silence about his own version of incident of bribe‑giving-- Strong piece of evidence of guilt.

Appeal from acquittal‑Seven years elapsed since offence (acceptance of Rs. 50 bribe)‑Severe sentence not called for.

M. B. Zaman, A. A. G. for Appellant.

Mahmud Ali for Respondent.

Date of hearing : 14th and 15th December, 1959.

This is an appeal by the State against the acquittal of Muhammad Afzal respondent for an offence under section 5 (2) of the Prevention of Corruption Act (II of 1947). This appeal had, in the first instance, been heard by Abdul Aziz Khan and Ortcheson, JJ., in the absence of the respondent, and he had been convicted of an offence under section 5 (2) of the Prevention of Corruption Act by their judgment dated the 23rd May, 1955, but there was an appeal to the Supreme Court and the case was remanded for the consideration of the question whether the respondent had notice of the appeal It was ultimately decided by the same Bench that there was doubt a to whether the respondent had been properly served As a result, this case had to be reheard.

2. Before proceeding to examine the merits, there is a preli minary objection which has to be disposed of. The objection is that the present appeal is not competent as it has been filed not under the orders of the Minister‑in‑charge but under those of the Home Secretary. It is contended for this reason that the appeal cannot be said to have been filed by the Government.

3. This appeal was filed on the 24th of September, 1953 The Government of India Act was then applicable. The executive authority of the Province vested in the Governor who could exercise it directly or through his subordinates and, as provided in section 59 (3) of that Act, the Governor could make the rules for the transaction of business and for the allocation of business among Ministers. The rule which will govern the present case is rule 8 of the Rules of Business, 1951, which runs as follows :‑

"Except when otherwise expressly indicated to these rules all cases pertaining to a department shall be disposed of by the Minister‑in‑charge, provided that :‑

(1) Cases of minor importance may, subject to the general or special orders of the Minister‑in‑charge, be disposed of by the Secretary or by such other officer subordinate to him as the Secretary may direct ;

(2) In cases of extreme urgency requiring the immediate orders, the Secretary may, if time does not permit of his first obtaining the orders of the Minister‑in‑charge, take such action as may appear to him to be necessary; but thereafter, all such cases shall be brought to the notice of the Minister‑in‑charge at the earliest opportunity for such orders as he may like to pass."

Mr. Ghias‑ud‑Din, Home Secretary, had been examined in this case and he admitted that this appeal he had filed without reference to the Minister‑in‑charge and under his own orders. He said that a practice had grown up in the Anti‑Corruption Department that appeals in such cases were filed under the signatures of the Home Secretary without reference to the Minister‑in‑charge. This practice had existed even before he took over charge in 1951, as Home Secretary. Later, when Sardar Abdul Hamid Dasti became Minister‑in‑charge of Judicial Department, he had directed that in cases where the Advocate‑General and the Legal Remembrancer agreed on a question of appeal against acquittal, there need not be any reference to him. This, however, related to all appeals and not simply to appeals relating to the Anti‑Corruption Department.

4. That the Home Secretary was the person who was to deal with appeals against acquittal cannot be denied. He himself said this and this is also provided in the Schedule to the Rules of Business, 1951, where, in the list of matters relating to the Minister for Education which are to be submitted through the Home Secre tary, appeals against acquittals and Crown applications for enhancement of sentences are mentioned at item No. 22. The only point for consideration is whether the filing of the appeal was a minor matter within .the meaning of rule 8, so that the Home Secretary was competent to deal with it without reference to the Minister‑in‑charge. It appears to us that the question whether a matter is of minor importance within the meaning of rule 8 is not one to be decided by the Court. It is a matter for decision of the Minister‑in‑charge If the Minister‑in‑charge does not object A to a particular matter being dealt with by the Home Secretary because he regards it of minor importance, the Courts cannot hold that as a matter of fact the matter was not of minor importance. The rule leaves the matter entirely in the hands of the Minister. He can even say that a matter which appears to be of minor importance should not be dealt with by the Home Secretary himself. But if there be no objection by him to the dealing of a particular matter by the Home Secretary, it is not for the Courts to hold the orders passed by the Secretary illegal on this account. It is clear that for a long time orders were being passed in the cases of criminal appeals relating to the Anti‑Corruption Department by the Home Secretary and the Minister raised no objection to it. As stated by Mr. Ghias‑ud‑Din, presumably the Minister‑in‑charge was aware of this or he would have objected to it. In any case, whether there was a practice or not, it was for the Minister to object to the filing of the appeal under the orders of the Home B Secretary himself, and it is not a matter which can be made a ground of objection to the appeal.

5. We turn now to the facts. The complainant in this case is one Khan Ahmad Khan. His father Dildar Muhammad and he himself are refugees from Jullundur District where Dildar Muhammad Khan owned more than 180 ghamaons of land. In Chak No. 207 of District Lyallpur also, Dildar Muhammad Khan owned 5J squares of land before the Partition and it is for this Chak that he filed his claim form. He was entitled in all to 5624 (or 5587, it is not quite clear) units of evacuee land on account of the land which he had left in Jullundur. He received 200 units in this Chak and got 1800 units transferred to Chak No. 387/G. B., Tehsil Samundri, District Lyallpur, where had been allotted 1812 units (12 more had been allotted because a field could not be split into parcels so as to yield exact 1800 units). Accord ing to the Rehabilitation Settlement Scheme a person could not be allotted more than 2000 units in the Lyallpur District and Dildar Muhammad Khan had to take the remaining units to some other district. The respondent was at the relevant time the Patwari of Chak No. 207. The prosecution case is that on 2nd June, 1952, the complainant, on behalf of his father, as well as on behalf of two other relations Mst. Mehtab Bibi and Sultan Ali, put in application Exh. P. A. for the calculation of units in order that the remaining units of these three persons may be taken to Sargodba District. This application which was addressed to the Additional Deputy Commissioner was marked by a Girdawar, under general instructions from the Additional Deputy Commis sioner, to the Additional Naib Tehsildar and a Field Kanungo marked it, on behalf of the Additional Naib Tehsildar to the circle Patwari. The complainant took it to the respondent on 3rd June, 1952. He requested the respondent to calculate the units and make a report but the respondent demanded money and said that without payment the report would not be made. On the 4th June again he approached the respondent again and got the same answer. On the 5th June the complainant met the respondent for the third time. The respondent demanded Rs. 50. The complain ant agreed to pay the next day at 9 a.m.

6. Chak No. 207 is close to Lyallpur town and the patwar khana of the respondent is situate in Lyallpur town itself. The complainant came to know that Malik Qutab Khan, Superinten dent of Police, Anti‑Corruption Department, was in Lyallpur on tour. He went to Malik Qutab Khan and told him what had happened. This was on 5th June. On 6th June, Malik Qutab Khan handed the complainant over to Inspector Abdur Rahman. who, on the same day, in the company of Sub‑Inspector Muhammad Iqbal and Head Constable Raza Ali, took the complainant to the District Courts. An application for organizing a raid was submitted by Inspector Abdur Rahman to the District Magistrate who deputed Qazi Muhammad Saeed, Magistrate 1^st Class, for the purpose. The usual procedure was followed. Qazi Muhammad Saeed searched the person of the complainant and noted the numbers of the five ten rupee currency notes in his possession. The raiding party then proceeded towards the pativarkhana of the respondent. The complainant was ahead of them. Information was received at first that the respondent had left the patwarkhana but some time later he returned. Qazi Muhammad Saeed and Abdur Rahman Inspector waited in a barber's shop which is about 20 paces from the pativarkhana while the Sub‑Inspector and the Head Constable kept on the look out for the agreed signal from the complainant. When the agreed signal was received, the members of the raiding party went to the patwarkhana. They found the complainant at the entrance of the pativarkhana and he led them to the room where the respondent was sitting. They entered that room. At ur Rahman took out his identity card and showed it to the respondent. Quzi Muhammad Saeed too disclosed his identity and then asked the respondent to hand over the sum of Rs. 50 which he had received as a bribe. The respondent hesitated at first and then taking out the five currency notes from his pocket handed them over to Qazi Muhammad Saeed. Qazi Muhammad Saeed compared the numbers of the notes with those in the list he had already prepared and found that they tallied. He prepared a recovery memo. of them. He then directed the respondent to produce the application of tile complainant Exh. P. A. on which the respondent was to make a report. Tile respondent produced the application which was lying in Register R. L. II of Chak No. 207 and Qazi Muhammad Saeed took in possession both the application and the register after making a memo. He then asked the respondent to accompany him to the District Courts. There a raid report was written and the respondent was, under the orders of Qazi Muhammad Saeed, taken into custody. All this time the respondent kept silent.

7. The prosecution story with respect to the raid was supported in Court by the statements of the complainant, Qazi Muhammad Saeed, and Abdur Rahman Inspector. Dildar Muhammad Khan, the father of the complainant, stated that it was the complainant who was in charge of the work of getting his claim satisfied. Sultan Ali P. W. stated that he and his relative Mst. Mehtab Bibi had applied for allotment to them of land through Khan Ahmad Khan complainant. These are tile two persons whose names were included in the application for calcula tion of units which led to the present prosecution. Chaudhri Abdul Karim Lambardar, Muhammad Sharif, Reader to the Additional Naib Tehsildar, Niaz Ahmad, Claims Qanungo, and Ch. Khuda Bakhsh, Field Qanungo, made statements to prove the endorsement on the application Exh. P. A. and some matters of procedure. Abdul Qayyum Patwari of Chak No. 387 proved the application for transfer of 1800 units of Dildar Muhammad Khan to that Chak and the allotment in that Chak of 1812 units.

8. The respondent, when questioned as to whether on 3rd June, 1952, the complainant had taken the application Exh. P. A. to him for making a report, denied that he had done so. When questioned as to whether he produced the application and the register in which it lay he said : "Yes. I did produce the register Exh. P. 6 which was lying before me. But when the register was looked up by the Magistrate, the application Exh. P. A. was discovered by him from inside the register. My registers remained lying in the pativarkhana and were lying in the pativarkhana on the day of occurrence. I have no lock and key to keep the registers in some safe place". He added at the end of his statement that there was no occasion for the complainant to put in an application for calculation of units at all, for already the units of land to which he was entitled had been reported. The above statements create a rather clear impression that the respondent is denying the receipt of the application Exh. P. A, altogether and though he does not say this in so many words, what he means is that the application had been put surrepti tiously in his register. That is why he says that his register remained lying in the patwarkhana on the day of occurrence and he has no lock and key to put them in any safe place and that is why he says that he produced the register before Qazi Muhammad Saeed and the application was "discovered" in it. When he adds that there was no need of such an application he appears to be making the same point. However, we may state even here, it has not been urged before us by learned counsel who has appeared on his behalf that the statement of the com plainant as to the handing over of this application to the respond ent is untrue.

9. Questioned as to whether he had received Rs. 50 from the complainant, he explained that he had paid Rs. 100 to the complainant for the supply of wheat. The complainant had supplied wheat worth Rs. 50 and the balance of Rs. 50 he had returned on the day of the raid. Questioned as to whether Qazi Muhammad Saeed had ‑not asked him to hand over the sum of Rs. 50 which he had received as a bribe and whether he had not, after some hesitation produced the notes, the respondent replied that the Magistrate had not asked him to produce bribe money and that he was astonished, when the Magistrate disclosed his identity, as to why he was being asked to deliver the sum of Rs. 50 which the complainant had returned to him.

10. The respondent alleged in his statement that the case against him was due to his refusal to help the complainant with respect to two mutations. At first Dildar Muhammad Khan, father of the complainant, had got entered a mutation of gift in favour of the complainant and his brother. On this mutation the respondent prepared a pedigree‑table and also made a note about the agricultural income‑tax of Dildar Muhammad Khan. Another mutation had been entered on the application of the mother of the complainant and this too was mutation of gift, by the mother, in favour of the complainant and his brother. The first mutation was rejected on the 31st of May, 1952. (It was not explained in the statement of the respondent but learned counsel for the respondent says it had been rejected because of the pedigree‑table which disclosed that the gift was not to all the heirs and because of the note about agricultural income‑tax). The complainant then brought Abdul Ghani and Abdul Hamid D. Ws. to the respondent and made a request that though the mutation of gift by the father had been rejected, the respondent may help the complainant so that the mutation of gift by the mother may be accepted. The respondent replied that the grounds of the rejection of the first mutation would also be grounds for the rejection of the second mutation and, therefore, he was unable to help in the matter. At this the complainant became bitter and the respondent in the presence of the two D. Ws. demanded the, return of Rs. 50 and the complainant promised to return that sum. In his defence, the respondent produced a number of witnesses but only four have been referred to in the arguments. Abdul Ghani and Abdul Hamid stated that they had, on the request of the complainant, asked the respondent to help him in connection with the second mutation. According to Abdul Ghani D. W. this happened on 1st June, 1952. The complainant used some strong words and the respondent demanded the return of Rs. 50 to which the complain ant agreed. Chaudhri Sultan Ali (D, W. 4) and Dr. M. A. Ghani (D. W. 5) stated that on 6th June, 1952, (the day of the raid) they had gone to the office of the respondent for some work and in their presence the complainant gave some currency notes to the respondent and said that he had settled the wheat account. There will be reference in more detail to the evidence 9f these witnesses presently. The learned Special Judge who tried the respondent was of the opinion that the question was whether Rs. 50 were received as the balance of the advance for wheat, he said :‑--

"The point for determination in this case is whether the accused took Rs. 50 as a bribe from Khan Ahmad Khan for making a report on the application Exh. P. A. as regards the balance of the units of land that his father Dildar Muhammad Khan and his relatives Mst. Mehtab Bibi and Sultan Ali and Niaz Ali were entitled to get outside Lyallpur District or whether this sum of Rs. 50 was due to the accused by Khan Ahmad Khan which the latter had taken for the purchase of wheat and since the accused did not help Khan Ahmad Khan in getting the mutation of land attested in his favour and that of his brother Umar Hayat, he turned against him and has made out this case against the accused."

He then found the story of the advance of Rs. 100 for purchase of wheat to be "an invention of a clever brain and supported in Court by witnesses." Yet he acquitted the respondent because he was of the opinion that the complainant had a grievance against the respondent and wanted to get him convicted.

11. When judging an accused we should be cautious lest we, by making normal inferences, convict one who may in fact be innocent. Yet with all the caution that we may exercise, when we consider the whole material on record, little doubt is left in our minds that the respondent is guilty. His conduct at the time of the raid is a strong piece of evidence against him. The Magis trate asked him to deliver the sum of Rs. 50 which he had accepted as a bribe. He hesitated at first and then handed over that sum. After that he did not say a word. In the absence of some explanation this is the conduct of a guilty person. And what is the explanation that he offers His explanation in his statement was that the Magistrate did not ask him to deliver the bribe money and he was astonished that the Magistrate should be asking him to deliver that money which the complainant had returned to him. But to Qazi Muhammad Saeed it was never suggested that he had not used, the word bribe and had simply asked him to deliver Rs. 50 nor had this suggestion been made to any other witness. Learned counsel for the respondent says the respondent may have been perplexed and, therefore, may have said nothing. This was not the plea of the respondent. When we point this out to learned counsel he says he is not putting forward this as a plea of the accused but as a submission of counsel. But a submission of counsel when it involves a plea of fact is stronger if it is supported by a plea on facts taken by an accused and is weaker if it be not the case of the accused though it is not altogether ruled out. We are not prepared to accept that the respondent may have refrained from stating that Rs. 50 were only the balance of the wheat advance because he was per plexed. The Magistrate, after he took the money prepared a memo. of it. He then asked the respondent to produce the application Exh. P. A. That application was produced along with the register and the Magistrate prepared another memo. The Magistrate then directed the respondent to accompany him to the District Courts which the respondent did. Why did not the' respondent, during the whole of this period, say something about the nature of the money received by him from the com plainant He knew well that this raid was intended to arrest him while taking a bribe and even if the Magistrate had not asked the word bribe (we are accepting the statement of the Magistrate that he did use this word) the respondent would be knowing the circumstances under which the raiding party had arrived and. taken possession of the money and the application, and there is no reason why he should not have made it known that the money was not received as a bribe but was the balance of the advance for wheat. The respondent said in his examination that he was astonished that the Magistrate should demand from him the sum of Rs. 50 which he had received from the complainant. If he was astonished he should have expressed his astonishment at some time to some members of the raiding party also. We asked learned counsel for the respondent as to when this defence was taken for the first time, and learned counsel said it was in Court. He said that the respondent did not take this defence at the time of the arrest as he was perplexed and he did not take it before the police during investigation because he was not bound to do and because the police may have tried to interfere with his defence evidence. Whatever the position as regards the disclosure of defence during investigation we find no good reason for its non‑' disclosure at the time of the raid.

12. The defence that the respondent has taken is by itself a highly improbable one. The respondent lives in Chak No. 207 and so does the complainant. Why should the respondent give to the complainant Rs. 100 as an advance The suggestion made to the complainant in cross‑examination was that Rs. 100 had been paid to him by the respondent in the beginning of the month of May, 1952, "for the purchase of wheat." No reason is given as to how the complainant was better able to purchase wheat than the respondent who is a patwari in a or Chak why the amount should be paid as advance.

13. We may also refer here to the evidence by which the respondent has tried to prove that the sum of Rs. 50 was the balance of the advance for wheat. Chaudhri Sultan Ali (D. W. 4) and Dr. M. A. Ghani (D. W. 5) are both of them Assistant Entymologists in the Agricultural College at Lyallpur. They stated that on 6th June, 1952, both of them started at 10 or 11 a.m. from the College Office to see the respondent in his patwarkhana. They were on cycles. When they reached the patwarkhana they found the complainant 2 or 3 paces ahead of them. In their presence the complainant handed over some money to the respondent saying that he had cleared the wheat account. For a few minutes (one says it was less than ten minutes and the other says it was about two or three minutes) the complainant stayed there and then went away. They asked the respondent to attend to the work (each had a separate business) which had brought them but the respondent said he had no time that day.

14. These witnesses had started at 10 or 11 a.m. presumably in College hours for some work which they had with We respondent on a dale which without reference to any record they remember. They have reached the office of the respondent just at the time when the complainant was going to enter it and shortly afterwards they have disappeared, because according to their statements the respondent had no time at all to attend to the business of these respectable people. Had they stayed there for even 3 or 4 minutes after, the departure of the complainant, they would have to say that the raid party came there and then they should have told what they saw to the raid party. They have to find an excuse for going away and they say the respondent had no time. Chaudhri Sultan Ali was asked as to what was his business and he said he bad to get the mutation of inheritance on the death of his father entered. Can a Patwari say to a person who comes to him to get 'a mutation of inheritance entered that he had no time Under the law he is bound to enter the mutation when a report is made to him. It can only be some urgent official business which may prevent a Patwari from entering a mutation the moment it is reported to him and even in that case the Patwari could only ask the informant to wait till he executed the urgent official business and could not ask the informant to come after sometime as he is alleged to have done in this case. Chaudhri Sultan Ali was asked as to when he visited the respondent again for getting the mutation entered. He said he never visited the respondent again and for the purpose of this mutation went to his successor only in November. It is strange that for a mutation of inheritance Ch. Sultan Ali should have waited for five more months before he made a second attempt. Neither the respondent nor any witness has explained as to what was the reason why the respondent could not attend to these two witnesses.

15. These two witnesses would have us believe that the complainant, who had come with a raiding party in order to pay Rs. 50 as bribe, was proclaiming to the world that he was paying the money as the balance of the advance of wheat. According to them he had made a declaration as to the clearing of account. If the complainant wanted to make a false case of bribe, would he pay the money in the presence of these two respectable and declare before them that it was about wheat The raiding party would be arriving in a minute and these two witnesses would tell the Magistrate what the complainant had said and it would be the complainant who would be challaned. In fact bad these witnesses left only a minute before the raiding party arrived, the respondent would have told the Magistrate that the money had been paid in the presence of these two witnesses and that the complainant had declared that the wheat account had been cleared. The witnesses have said "that the complainant remained with the respondent for a few minutes. But the story of the respondent, as it was in his statement and as will appear from the evidence of the next two defence witnesses, is, that on 1st June, 1952, there had been a quarrel between the complainant and the respondent and the complainant said in reply to the respondent's demand that he would send the balance of Rs. 50. How is it then that the complainant while paying Rs. 50 indulges in presumably friendly intercourse for a few minutes.

16. The other two witnesses are Ch. Abdul Hamid an M. L. A. and Abdul Ghani a retired postmaster. Chaudhri Abdul Hamid said that he had been asked by‑the complainant in the middle of May, 1952, to speak to the respondent so that the respondent may help him in a mutation and he' replied that he would speak to the respondent if he had time but he had no time. Two weeks later the com plainant approached him again and said that the mutation with respect to which he had sought his help had been decided against him one day previously and that he should speak to the respondent for the other case (the first mutation was that of gift by the father which had been 'rejected on 31st May, 1952, so that the alleged date of the visit of the witness would be 1st June, 1952, and the object would be help in respect of the mutation of gift by the mother). He went along with the complainant to the respondent and asked him to help the complainant. The respondent said that he could do nothing for the reasons of the rejection of the first mutation were applicable to the second. At this the complainant quarrelled with the respondent and the respondent demanded back the money which he had paid for the "purchase of wheat." The complainant said that he had already supplied two bags worth Rs. 50 and that there remained with him Rs. 50 which he would send through someone after three or four days. Abdul Ghani D. W. was present at the time and the complainant said that he had brought him to recom mend his case to the respondent.

17. The witness had said that he knew the complainant because the complainant came from Jullundur. He himself came from Hoshiarpur. He was cross‑examined on this point. When asked as to how he knew him he said his (the witness's) uncle had been posted at Jullundur but admitted that he himself had not gone to Jullundur in that connection. He said his uncle's sons were the friends of the complainant. He admitted that he had not seen the father or mother of the complainant, nor his brother, nor any member of his family. He had never been to the house or the village of Khan Ahmad Khan.

18. While giving evidence Ch. Abdul Hamid had stated that he was living at Lyallpur. He had said that the complainant had come to. him which meant that he had come to him at Lyallpur. While under cross‑examination he was asked as to whether it was not a fact that at the time of the occurrence he was not residing at Lyallpur at all. He had to admit that while a bungalow at Lyallpur had been allotted to him he had not yet been delivered possession and that he was in those days living at Jaranwala and not at Lyallpur. He added that he used to come daily to Lyallpur. This is the way he explained as to how the complainant met him. But it was not his case in examination‑in‑chief that the complainant had met him by chance (twice) somewhere on the road while he had come from Jaranwala. He had said that the complainant had come to him which would meats at his place of residence.

19. The evidence of the other witness Abdul Ghani, a retired postmaster and a resident of Chak No. 207 is no more impressive. He was produced for two purposes. The first was to prove that there was enmity between the complainant and the respondent because the respondent had been appointed arbitrator to decide a dispute pending in the Court of the Revenue Assistant between Abdul Ghani D. W. on one side and Asghar Ali and Ahmad Ali on the other side and the respondent had decided the dispute in favour of Abdul Ghani and against Asghar Ali and Ahmad Ali who were relatives of the complainant. A copy of the decision in the case was also filed which showed that the case was decided according to the award of "Muhammad Afzal Races of Chak No. 207". The second part of the evidence of Abdul Ghani is a support to the statement of Ch. Abdul Hamid. He begins by saying that he had gone to the respondent in connection with his own fard haqiat and the complainant and Ch. Abdul Hamid came there. When Ch. Abdul Hamid recommended the complainant he also supported him because the complainant had approached him too. He does not fully support the story of Ch. Abdul Hamid, for according to him the reply of the respondent to the recommendation of Ch. Abdul Hamid was that "whatever was permissible under the law would be done." He does not refer to the respondent as saying that he could do nothing, for the second mutation would be rejected for the same reasons as the first. He then abruptly says the parties began to quarrel without assigning any reason as to why they should quarrel. The respondent according to him demanded the return of balance of the wheat advance and the complainant promised to return Rs. 50. He does not know what help the complainant wanted from the respondent, nor whether the help was legal or illegal. According to the case of the respondent himself he had decided the arbitration matter in favour of this witness. However the relation of the opposite party, that is Asghar Ali and Ahmad Ali, with the complainant is not proved. Abdul Ghani had said that he could not specify the relationship.

20. In this connection it would also be pertinent to ask what help the respondent could render to the complainant after the first mutation was rejected. The reason for the rejection of the first mutation is said to' be that the respondent had made a pedigree on it and had referred to the agricultural income‑tax. The mutation was rejected as it was not in favour of all the heirs. This pedigree had been entered in January, 1952. But in February, 1952, even the pedigree on the second mutation had been prepared as is clear from the endorsement of the respond ent on the application of the mother. What help could then the respondent render However it may possibly be that the complainant still regarded the respondent as capable of rendering some help, although he had in fact done all that he had and it is not on this ground that we reject the evidence of these two witnesses.

21. It has been urged that the complainant had a grievance against the respondent and, therefore, he has concocted this case. Now, we are not at all saying that the complainant may not have had a grievance against the respondent. In cases of this kind, the complainants are more often than not, motivated rather by personal grievances than public benefit and when we are consider ing the statement of the complainant we do not exclude that fact from consideration. It is not because of any implicit faith in the statement of the complainant but because of the conduct of the respondent, the utter improbability of his defence, and the rest of the material on record that we find against the respondent. The question is not whether the complainant had a grievance against the respondent but whether Rs. 50 were given as bribe. We have believed the story of the complainant because it is supported by the conduct of the respondent, by the absence of any acceptable explanation of the receipt of Rs. 50 otherwise than as bribe, by the fact that the application Exh. P. A. was still lying with the respondent without a report, ‑ and by the general effect of the whole prosecution evidence. In fact the conduct of the respondent at the time of the occurrence in the absence of any acceptable explanation is sufficient to bring the charge home to the respondent.

22. Much stress was laid on the plea that there was no need for the complainant to put in an application for getting the units calculated because already he had all the data with him having put in a similar application .when he wanted to transfer the 1800 units to Chak No. 387. Now in the first place, it appears that the calculation of units was an ordinary procedure for the purpose of transfer of units. The application, which had been put in when the units were transferred to Chak No. 387 bore the head "application for calculation of units" though in the body there was a prayer for transfer also. Nobody had objected to the form of this application. The previous certificate containing calculation of units had been attached to the previous application and may not be available for the application for transfer of units to Sargodha. In any case, the futility of the argument is apparent when we ask for the point which is to be made by this argument. The point is stated to be that the complainant just wanted to put in an application which may be sent to the respondent so that he may be able to prove a bribe and as there was no occasion to put in an application which would be sent to the respondent he put in this unnecessary application. But there is an unanswer able reply to this argument. If the complainant wanted to put in an application which would go to the respondent he could simply put in an application for transfer of his remaining units to Sargodha. It is admitted that such an application would have been sent to the respondent. It is admitted that only 2000 units could be allotted in Lyallpur District and the remaining 3624 had to be sent to some other district. It is admitted too that the remaining units of Dildar Muhammad Khan were ultimately transferred to Sargodha District. Why could he then not apply for transfer and get the application sent to the respondent

23. It has been remarked during the argument that the complainant got orders the same day on the application from two officers. But even in his previous application for transfer of units to Chak No. 387 he did every thing expeditiously.

24. The charge has been fully brought home to the respondent. We find him guilty of an offence under section 5 (2) of the Prevention of Corruption Act and, accepting this appeal, we convict him accordingly. As regards sentence, we do not think a severe sentence is now called for. The offence was committed in June, 1952, and more than seven years have elapses The respondent has already attained the age of superannuation. We sentence him to pay a fine of Rs. 1,00) or in default to undergo simple imprisonment for three months. He is allowed two weeks within which to pay the fine.

A.H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.